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Can employers include previous incidents in a disciplinary investigation report

Published 15 December 2017

The answer is yes.

In the recent Employment Appeal Tribunal (EAT) case NHS 24 v Pillar(1) , the EAT held that it is not necessarily unfair to include additional information, such as past incidents in the disciplinary investigatory report even if it is not relevant.

This is the decision following the NHS appealing against a finding that the Claimant had been unfairly dismissed and their appeal was allowed with the finding of a fair dismissal being substituted.

The background of the case

Mrs Pillar was employed as a nurse practitioner by NHS Scotland, who provided telephone and online care services to people 24 hours a day, seven days a week. Her job involved evaluating the symptoms being described to her by members of the public over the phone and determining their medical priority and what they should do next.

In 2013 she made a clinical error after she was contacted by a man who described symptoms consistent with a heart attack. Instead of directing him to a 999 outcome she directed him to an out of hours GP, which meant she missed the red flag and put him at risk.

There was a disciplinary investigation into this Patient Safety Incident (PSI) she was then dismissed for gross misconduct. The disciplinary investigation report that led to the dismissal did include the details of two earlier (2010 &2012) PSIs.  One of which was similar to the PSI incident for which she was dismissed and the other previous PSI involved concerns about the employee’s triage decision making. However, both these previous PSIs were dealt with by way of providing a development plan and additional training rather than disciplinary action and she was not advised that any reputation could be regarded as a lack of clinical competence.

The claimant brought a claim for unfair dismissal on the basis that the investigatory report included details of two previous PSIs, neither of which had been treated as disciplinary matters at the time.

Usually, when the tribunal is looking at an employer’s investigation process, it is normally whether the investigation was adequate in the circumstances; the issue is whether the investigation was too narrow, not whether it included too much detail.

Employment Tribunal (2decision
 

The tribunal, in this case, did accept that it was reasonable for the respondent to consider Mrs Pillar’s conduct to be gross misconduct given the risk to the patient. However, they did make a finding that her dismissal was unfair because of the inclusion of details about the first two PSI’s within the investigative report made it fall foul of the “reasonable investigation" requirement set out in British Home Stores v Burchell (3) .

The tribunal also accepted the respondent was entitled to include details of the training the claimant had undergone following the other PSIs, but it was not entitled to include details of the incidents, given that they had not been treated as disciplinary matters at the time they had occurred. However, the claimant’s compensation was reduced by 70% to account for blameworthy conduct.

Employment Appeal Tribunal (4(EAT)

The EAT agreed with the employer’s arguments that including previous issues in an investigation report did not render the dismissal unfair, and decided that the dismissal was fair.

The starting point of the fair dismissal test on an investigation is to establish whether the investigation is regarded as sufficient.

Lady Wise (sitting alone) found that, it is highly unlikely that including too much in an investigation report can render a dismissal unfair but did not rule out that there may be cases where an overzealous or otherwise unfair investigation process could fall foul of the investigation test established in British Home Stores -v- Burchell 1990 ICT 303.

Also,there had not been any challenge by Mrs Pillar to the overall relevance of the material before the decision-maker at the disciplinary hearin.The EAT took the view that it was wrong for the ET to decide that background information relevant to patient safety should have been witheld from the chair of the disciplinary hearing

In practice, the key to fairness will be what the decision-maker at the disciplinary hearing took into account in their decision-making process regarding previous events or warnings, not what was included at the investigative stage.

The EAT referred to the test for fair dismissal which is that in order for a dismissal to be fair an employer must:

(i)   believe an employee is guilty of misconduct

(ii)  have reasonable grounds for believing it and

(iii) the decision must follow a reasonable investigation.

The EAT also held that because the Tribunal had found that the decision to dismiss was within the band of reasonable responses, it was perverse that the Tribunal should then conclude that the dismissal was procedurally unfair based on the fact that Mrs Pillar had not been warned at an earlier stage that the earlier PSIs could be referred to in a later investigation. The EAT held that the Tribunal had failed to explore the gravity or context of this procedural defect as stated in Taylor v OCS Group Limited (5) .

Comments

Over the last few years, we have seen cases determining when spent warnings may be taken into account during a disciplinary process and this case is simply about the inclusion of additional information about previous incidents within the investigation report.

It is reassuring for employers that including such information does not render the dismissal unfair and that may encourage employers to include such information within investigation reports where you think it is reasonable to do so. However, the very fact that this argument had been successful before the initial Employment Tribunal, highlights that you should be careful when including information about previous historic incidents.

The important fact is how the decision-maker uses such information and what weight is given to it. And also, whether this additional information is challenge by the individual during the disciplinary process as to its relevance.

I would say if you are the decision-maker during any disciplinary hearing, this case shows us of the importance of ensuring that you only refer to previous incidents when it is appropriate and fair to do so.

The other issue that should be on an employer’s mind, will be the retention and use of previous warnings (whether formal or not) when considering GDPR (6) and what it means for HR records. The Information Commissioner (7) already advises employers that you should have clear procedures about when spent warnings are removed from personnel files, and says that investigators should not have unrestricted access to information during an investigation even if it is relevant.

If you need some free advice or further information please do not hesitate to contact us.

References

1. NHS 24 v Pillar UKEATS/0005/16/JW [Internet]. [cited 2017 Dec 11]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed36110

2. Employment Tribunal - GOV.UK [Internet]. [cited 2017 Dec 11]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal

3. The Hon. Mr. Justice ARNOLD Mr. J.D. Hughes QBE Mrs. J.G.C. Milligan OBE. British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007 [Internet]. 1978. Available from: http://www.bailii.org/uk/cases/UKEAT/1978/108_78_2007.html

4. Employment Appeal Tribunal - GOV.UK [Internet]. [cited 2017 Dec 4]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal

5. LORD JUSTICE BROOKE (Vice-President, Court of Appeal, Civil Division) LORD JUSTICE DYSON and LADY JUSTICE SMITH. Taylor v OCS Group Ltd. [2006] EWCA Civ 702 [Internet]. 2006. Available from: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/702.html

6. Guide to the General Data Protection Regulation (GDPR) [Internet]. 2017 [cited 2017 Dec 11]. Available from: https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/

7.  Information Commissioner’s Office - GOV.UK [Internet]. [cited 2017 Dec 11]. Available from: https://www.gov.uk/government/organisations/information-commissioner-s-office

 

 

 

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